“Is the statute of limitations in Alabama on a credit card lawsuit 3 years?”


“Is the statute of limitations in Alabama on a credit card lawsuit 3 years?”

"Is the statute of limitations in Alabama on a credit card lawsuit 3 years?"If you have been sued in Alabama on a credit card debt — normally by a company such as LVNV, Midland or Portfolio — then you are wondering if the statute of limitations is really 3 years.  This is critically important as these debt buyers (debt collectors who claim to buy the debt) almost never sue within 3 years.  Instead they sue between 3-6 years after you go into default.

You can read online that the statute of limitations in Alabama is 3 years on a credit card.  This is true, but it is not the whole story.

A credit card is considered an “open account” in that there is no set amount borrowed once and no time limit to pay it back.  This is clearly 3 years.

But the collection lawyers who sue — at least the good ones — are smart enough not to put a claim in for “open account” — instead they sue under the following theories:

  • Account stated (or stated account); and
  • Breach of contract

Occasionally we will see other claims but these are the two that are closest to being legitimate.

Both of these are 6 years in Alabama which is why the debt buyers sue under these theories.

Why the account stated (or stated account) theory does not apply in Alabama to debt buyer lawsuits.

This is a legal theory that says if you have an open account (say at your dentist office or accountant’s office or a local hardware store), and the company sends you a letter detailing all of the charges and payments, then it transforms the “open account” into a “stated account” and becomes the same as a new loan.

Here’s the problem.

Debt buyers claim every month you receive a new statement from your credit card company, it is now an “account stated” but the credit card companies would be shocked to know this.  If it is a new loan, they must do brand new Truth In Lending Act disclosures among other things.

They don’t think it is a new loan — this is simply an “after the fact” argument made by debt buyers.

So the debt buyers will now start sending you a sheet of paper called “Account Stated” and say when you don’t object to this, it becomes a stated account and now (magically!) they have 6 years to sue.

This is not what the law allows in our judgment.  This is forcing a square peg into a round hole — it just doesn’t fit.

But what about the “breach of contract” claim?

No luck either for the debt collectors….

Breach of contract does not apply to credit card accounts as the proper legal theory is open account.

A contract is where the terms are established.  With a credit card, there are many things are not established such as the date it will be repaid, exactly how much is owed, etc.  The appropriate legal theory is open account, not breach of contract.  That’s why open account was created — to deal with exact situations like credit card debt or where you buy goods or services and have no set repayment time.  “Put it on my tab” kind of situations with your CPA, regular mechanic, etc.

Regardless of all of this, the truth is the statute of limitations is the least important defense when sued by a debt buyer.

Virtually everyone who calls my office to talk about being sued — and we typically are hired by 5-10 new clients a month for this — is focused on statute of limitations.

But . . . it really is not that important.

I think once, in defending hundreds of Alabama consumers, have I ever relied upon statute of limitations.

(Note I have sued debt buyers in federal court for filing suit outside the SOL but I don’t rely on it as a defense).

The critical factor is to remember the debt collector must prove it owns the debt.

If it does not do this, then nothing else matters.

Let me use an illustration.

Do you owe a mortgage company or a landlord for your house?  If you don’t, do you owe a car payment?

Whatever it is here is what I want you to do.

Starting next month, pay me your mortgage, rent or car payment.

Hopefully this will happen and I’ll have a flood of checks coming in.

But I’m going to hallucinate you will not do this.

Why not?

Don’t you admit you owe a debt on your home or you owe a landlord or you owe on your car?

So pay me — you owe it!

But I can hear you say:

But I don’t owe John Watts my mortgage or car payment!!!

Ahh……

That is the key to these cases.

You are sued by one of these companies:

  • Asset Acceptance
  • Autovest
  • LVNV
  • Midland
  • Portfolio
  • Unifund
  • Vion
  • etc.

They say “You owe this debt!!”

OK.

So what if I do?

Did I do business with you?

Did I ever borrow money from you?

Or, did you ever fix my air conditioner or my car?

No?

OK, then before I owe you, you must prove you own the debt.

Without proving that, these debt collectors have as much right to get paid as I do to get your mortgage payment, car payment or rent payment.

Amazingly, debt collectors who sue in Alabama seem to struggle with proving they own the debt.

Seems pretty simple, right?

They bought the debt so they just prove it in court.

Piece of cake.

Well…..

I guess not since they struggle with it.

The reasons, which are many, aren’t really important.  What is important is understanding there is a big difference in claiming someone owns the debt and that “someone” proving it actually owns the debt.

Talk.

Proof.

Two different things.

So it is fine to think about the SOL but don’t get distracted.  Before you even get to the SOL, the debt buyer, in court, must prove it owns the debt.

If you have questions about a debt collection suit in Alabama, feel free to call to us at 1-205-879-2447.

You can also fill out this form and let us know who sued you, the amount, the case number, and when you were served.  

We will glad to go over the five options that are available to everyone who has been sued and help you see which option is best for you in your unique situation.

Best wishes!

John Watts

Birmingham, Alabama

 


47 Comments

  1. Sandra says:

    John,

    So true. Don’t know what I would have done without you, but I’m being flooded with calls and a few letters from LVNV and Portfolio, again. I’m still writing down as you told me to do before and keeping some of the messages on my phone. Thanks again for all of your help!

    • John Watts says:

      You are welcome! Sorry getting these calls and letters — contact my office and we’ll be glad to help you again.

      Key is to document the calls — keep the letters — and let’s see what these two rather notorious debt buyers (LVNV and Portfolio) are doing and whether they are following the law.

      Talk soon!

      John Watts

  2. Jeremy says:

    If Midland has produced the bill of sale from Asset Acceptance and Dell Financial Services, I guess is the chain of assignments that goes all the way back to your original
    creditor, is that proof that they really own you account?

    • John Watts says:

      Jeremy,

      Great question.

      The bill of sale from Dell Financial to Asset and then one from Asset to Midland can be proof.

      But let me ask you this — did you really get the “bill of sale” from either transaction?

      Did you get the entire document or was it the first page only with a “redacted” spreadsheet showing your information only?

      Did you get the “purchase agreement” that is described on page one of the bill of sale? This will normally explain how the seller of the accounts is making no promises or representations about the accuracy of the accounts. But the debt buyer such as Midland will claim the records are the “Gospel Truth” despite this.

      If you did not get the full set of documents, then I would be very skeptical of this. They have come into court and tried to do the one page version and we object. Never had a judge rule Midland can just put in one page. They claim the rest of this is so secret that we can never see it.

      Well . . . it is trial so you have to prove your case even if you must use “secret” documents. They are not secret by the way — half are on the internet but these guys want to elevate their own status by making everything “confidential” and “proprietary secrets.”

      I hope this helps you some and if you have further questions feel free to get in touch with us through our “contact us” page or call us at 205-879-2447.

      • Judson says:

        I actually tried a case in Baldwin County the other day with the exact same facts. Midland had a chain of 3 assignments from Dell Financial to Asset Acceptance to Midland. I objected on a number of grounds and the judge sustained and entered a judgment for the defendant after about a 5 minute trial. That happens all the time.

        This one has a funny wrinkle, though, that Mr. Watts or Herring may find interesting. The order came out saying that the case was “dismissed due to improper service.” When I looked back at the service papers, the client was served in Mobile, where she lived. But she’d been sued in Baldwin County – 30 miles away. She had formerly lived there, but had been in Mobile for over 2 years. That is a violation of the FDCPA’s venue provisions. So I have to wonder: did Midland submit an order stating that the case was dismissed for improper service to try and sneak into the record a last-minute defense to a federal court suit over their obvious venue violation?

        I emailed the judge’s secretary this morning about it. We’ll see how it goes…

        • John Watts says:

          Judson,

          That is interesting.

          The venue provision at 15 U.S.C. Section 1692i(a)(2) says venue is only proper in county where consumer signed contract or where consumer lived when the lawsuit was filed.

          If she signed the contract (or took out the credit card) in Baldwin County, then ok to sue her there under FDCPA. (I think she could have transferred the case under Alabama venue law).

          That’s odd on the order — I wonder if just used the wrong form order? Especially since you had a trial.

          Or maybe judge picked up on the answer mentioned she was sued in wrong county?

          My concern is a dismissal for improper service normally is not an adjudication on the merits — it is not a dismissal with prejudice.

          The dismissal with prejudice or judgment for defendant is what gives us some closure to this.

          Keep us posted and keep up the good work!

          John Watts

          • Judson says:

            I followed up with the judge’s office and it seems to have been a mere mistake: they’re going to amend the order to make it clear that the case was tried and judgment issued for the defendant. The only evidence they had of the contract was a computer printout (she allegedly had ordered a Dell computer online) with her name and email address, but my client denied (in testimony at trial – because they subpoena’d her to drive 30 miles from West Mobile to Fairhope) buying a computer during the relevant time frame. They didn’t even allege that there was a paper contract, and the document they brought to court did not have an electronic signature that would have complied with the ESIGN Act. Of course, there could have been other documents that they didn’t show me. It seems to me that the issue of the contract’s existence having been a critical element of Midland’s claim, that fact was adjudicated in the state court trial and res judicata would bar it from being brought up as a defense later. Have you succeeded or failed on that argument before?

          • John Watts says:

            Judson,

            That’s good news!

            We have won cases in state court and then when we sue in federal court the lawyers say, “Judge, we will prove that the Plaintiff really owed this debt to our client.”

            We say, “No…. that ship has already sailed. You lost that issue in state court — res judicata, etc. That issue is set in stone.”

            Judges agree.

            Now certain state law claims may open the door (or so they argue) — malicious prosecution, etc. which has an element of looking at what Midland knew when it filed the suit.

            But at least in a pure Fair Debt Collection Practices Act (FDCPA) claim I think they are up the creek with arguing that our clients really did owe them and they really did own the debts they sued on.

            If you are interested in filing suit give me a call or email me and we can talk through some of the issues. Midland has an almost knee jerk reaction where they “must” file a motion to dismiss or other type of motion. I think over the years we have faced about 20 motions to dismiss by Midland in federal court. Their arguments change every time. The results don’t. 🙂

            Congrats again on your victory!

            John Watts
            205-879-2447

  3. Nathaniel says:

    John,

    How can you determine if the plaintiff (debt collector) owns the debt? Technically they bought the debt knowing that it was bad and sued anyways. So since they bought the debt, do that technically own the debt now or do they have to provide you with the same services as the original creditor?

    Thanks,

    Nathaniel

    • John Watts says:

      Nathaniel,

      Great question thanks.

      IF the debt buyer truly bought the debt, then they own it even though they never made you a loan, extended credit, etc.

      But the question is “Do they own it?”

      This has to be proved under the rules of evidence when they sue you.

      We have a couple of things that guide us.

      One is called the “Best Evidence Rule” which basically says don’t put forth evidence about a contract (for example) — instead put into the evidence the actual contract.

      So the debt buyer should not just say “We bought the debt” but should show as evidence the full contract that actually shows they bought it.

      They despise doing this.

      Another concept is the “Completeness Doctrine” which says don’t put in a part of a document — instead put into evidence the whole document.

      Debt buyers want to only put in the first page of the contract where they allegedly bought the debt but they need to give the whole contract to the court (and to you) so you can see what it says. For example, it normally will say “The seller makes no claims about the accuracy of the accounts listed.”

      Oops.

      That’s a problem for debt buyers as they come into court and want to treat the “mysterious” purchase agreement (which they won’t show to the court) as the Gospel Truth. But it says no accuracy. Bit of a problem.

      This whole process has to be done for every buyer in the chain of title. And all the rules of evidence have to be followed including hearsay, personal knowledge, etc.

      So in summary it can be done but most debt buyers are not willing to spend the time or effort to actually comply with the rules of evidence. If they do, then they might win.

      If they don’t, they should lose.

      Hope this helps — let me know if any other questions or comments.

      John Watts
      Birmingham, Alabama
      205-879-2447

  4. Timothy says:

    Good morning John,

    A few questions for you:

    What can you do if you are sued by a debt collector in court and once the case goes to court they dismiss the case with prejudice?

    And if the case is dismiss with prejudice, can you be sued for that debt again?

    Also, since that debt collector dismissed the case with prejudice, can they sale the debt to another debt collector and be sued again?

    Thanks,

    Timothy

    • John Watts says:

      Timothy,

      Thanks for your comment and questions.

      If the debt collector sues and dismisses with prejudice, then this means you won your case (unless it was done in the context of a settlement).

      Once a case is dismissed for prejudice, the case is over the same as if you won so no you should not be sued for that debt again. We have had this happen and when it does the debt collector pays a lot of money in damages. 🙂

      No — there cannot be any sale of the debt to someone other collector. The debt is dead. Done. So there is nothing to “sell” or “transfer” or “assign.” The new collector, if it bought this worthless debt, could not collect against you and could not sue.

      Well, it might.

      But then you sue in federal court as it is illegal to collect or sue on a non existent debt.

      I’m out of town but will send you a private email to follow up with you on this. I’m assuming that you are in Alabama and that’s where the case occurred. If somewhere else, I don’t know the laws but I do know the state laws in Alabama and the Fair Debt Collection Practices Act (FDCPA).

      Give us a call at 205-879-2447 to discuss further or contact us through the website.

      Thanks

      John Watts
      205-879-2447

  5. Julie Gowers says:

    LVNVfUNDING, came to my business and gave me a summons
    with my home address to appear in court in five days.

    I asked what it was for and they said “call the number”
    so I did. A lady said, you owe us money? I asked who?
    She said “It will be explained”. She said the lawyers want
    $250 for your court and they will say it’s settled. I
    will send you the paper work and I have to have it back before court.

    The paperwork stated I owed $2,327.57 plus court costs = @,448.57 and of I paid $100 per month then on the unpaid balance it would be interest of 5% per annum.

    Payments were to be mailed to the Law Offices of Baker and Miller P.C. 29 N Wacker Drive Suite 500 Chicago ,IL. 60606.

    After trying for months to find out what this debt was and sending in the payments I sent a certified letter to Baker and Miller that came back undeliverable as addressed no forwarding on file.

    Now different attorneys for LVNV Funding LLC. are going to court Monday June 16th with a motion to Reinstate and Judgment for balance due plus court costs. (new attorneys are Blitt and Gaines from Wheeling, Il.

    They say I have paid $1,200.00 and quit paying in Jan of 2014. I have actually paid them $1,750.00 (includes the $250 initial for their lawyers fee to say it has been settled).

    I know I was stupid for signing the paper work she sent as they have never said what or whom I owed the debt for or to and the certified letter was my stopping point.

    They are attempting to collect an additional $1,228.14 plus costs $161.00. Can you help me or am I a lost cause?

    • John Watts says:

      It sounds like you were sued in IL — if this is correct then you need to get with a consumer protection lawyer in IL as the rules in state court are different than where I practice in Alabama.

      LVNV does sue a lot of Alabama consumers and we have never seen LVNV prove it owns the debt but that has not stopped them suing. I know here the key is to get with a lawyer who understands this area of law ASAP. It sounds like you are pretty far into the process but again you need to get with a lawyer immediately to find out your options.

      I would NOT assume you have no options — instead you almost always have options so find out the good and the bad of each option and that will allow you to make the right choice.

      I’m sorry I can’t help you directly but I hope this advice to get a lawyer will help you. And if I have misunderstood you and you really are in Alabama and you are dealing with IL lawfirms, then give me a call as we have some things we can help you with here.

      Best wishes.

      205-879-2447

      John Watts

  6. Stacei says:

    Hi John,

    I have been sued by Midland under, you guessed it, Breach of Contract. I go to court next month. Here’s where I’m confused. They provided old statements from Washington Mutual….then Chase….and a Bill of Sale showing that they bought “some” Chase accounts. My actual account number or name is not listed in this “Bill of Sale”. Would they need to also provide evidence where Chase bought my account from Washington Mutual to be successful? Also, is this Bill of Sale even valid without my actual name and account number?

    • John Watts says:

      Stacei,

      Midland (and the other debt buyers) seems to struggle with proving they really bought the debt.

      Normally they have to show the complete “Bill of Sale” along with the “Purchase Agreement” that will also list your specific account.

      Contact Carolyn in my office (205-879-2447) so she can look up your case and she can set us up a quick call where we can go over this so you’ll be able to go to court as prepared as possible if you handle on your own. I have a report (about 25 pages) we send to folks who are handling their cases “pro se” (without a lawyer) — I hope it will be helpful to you.

      Best wishes and let us know how your case turns out in July!

      John Watts

      • Stacei says:

        Hey John!

        Well, I went to court yesterday and I won my case! Now I’m just hoping they don’t appeal. They were unable to show me proof that Washington Mutual and Chase merged, neither could he provide a full Bill of Sale. Thank you so much for all of your help!!

        • John Watts says:

          That’s awesome! Great job!

          Let us know if they appeal or you can call us at 205-879-2447 and ask for Carolyn and she can look it up online for you to see if they appeal.

          Remember since you won this means this has to come off of your credit report — the debt collector account — and it means you don’t owe the debt collector.

          Touch base with us and we can talk about your options going forward.

          Congrats again!

          John Watts

  7. Rodney says:

    Good evening John,

    I wad sued by Midland Credit Company through Holloway & Moxley back in March for an old debt that they supposedly bought. Went to court in May and the case was dismissed jointly with prejudice. I am still receiving correspondence from the law firm saying that I have an outstanding balance owed and I need to contact them as soon as possible. Now as the paper I received from the courts states that “all issues of the dispute arising out of and related to the account or collection attempts thereon by the Plaintiff or Plaintiffs agents and attorneys have been resolved to the satisfaction of all Parties”. With that being said, so they still be sending me correspondences??? And what can I do to stop this since I don’t owe them and the court’s have said I dont owe them?

    Thanks,

    Rodney

    • John Watts says:

      Rodney,

      I apologize for the delay — I’ve been buried in some cases and got delayed checking the comments.

      Sounds good that you got the case dismissed with prejudice by a joint stipulation of dismissal — I assume that is what happened.

      The case is over.

      You should not receive any type of collection activity on the debt in my opinion. No credit reporting from Midland.

      No collection letters from Midland or any firm including Holloway & Moxley.

      Are you sure it is the same debt and not another Midland account?

      If same debt then the way to stop it permanently is usually to sue Midland in federal court for still collecting this debt.

      Give my office a call at 205-879-2447 and we can go through your options and the good and bad of each option.

      Best wishes

      John Watts

  8. Rodney says:

    Good morning John,

    I wad sued by Midland Credit Company through Holloway & Moxley back in March for an old debt that they supposedly bought. Went to court in May and the case was dismissed jointly with prejudice. I am still receiving correspondence from the law firm saying that I have an outstanding balance owed and I need to contact them as soon as possible. Now as the paper I received from the courts states that “all issues of the dispute arising out of and related to the account or collection attempts thereon by the Plaintiff or Plaintiffs agents and attorneys have been resolved to the satisfaction of all Parties”. With that being said, so they still be sending me correspondences? And what can I do to stop this since I don’t owe them and the court’s have said I don’t owe them? Also, after contacting Midland Credit Management to have them remove the file off of my credit report, the representative on the phone said that the paperwork says that the case was dismissed without prejudice.

    Thanks,

    Rodney

  9. John says:

    Question: I have a consumer loan which was taken out in Ohio (we relocated to AL last November). The loan went into default and I am getting calls from various folks who claim I will be arrested, sued, etc. I now have the $382.82 to pay it off, how can I go about this to stop all the calls?

    • John Watts says:

      What type of loan was it? A pay day loan or cash advance type of loan?

      Those are the loans we typically see where you will get these (normally untrue) threats of arrests, etc.

      Give us a call at 205-879-2447 and let us know who is calling you. Save all documentation you have — letters, voicemails, etc.

      Also pull your credit reports to see what is being reported on you — you can do this for free at http://www.AnnualCreditReport.com.

      Sorry you are dealing with this — be glad to help so give us a call if you would like to chat.

      John Watts
      205-879-2447

  10. Dirk says:

    Good evening John,

    I am being sued by Midland Funding LLC. through Holloway and Moxley for a debt charged off by the original debtor in March of 2009. I am preparing my response to their complaint. I have several questions: (1) Can a defendant use more than one affirmative defense? (2) Should I file my counter suit along with my response to the complaint? (3) Can I object to evidence on grounds of hearsay? (ie. credit card agreements and affidavit of debt.) (4) Should I inform these debt collectors I am recording our phone conversation. I am aware that in the State of Alabama, as long as one party is aware…etc., but if they deny me permission to record, what should I do?
    I want to thank you for your help in this matter. I will do my part to educate as many Veterans as possible to this malicious form of debt collection.

    Sincerely,

    Dirk

    • John Watts says:

      Dirk,

      Thanks for your comment!

      In answer to your questions:
      (1) Can a defendant use more than one affirmative defense? Yes you can include as many affirmative defenses as you want.
      (2) Should I file my counter suit along with my response to the complaint? We do not recommend this and we don’t do this when we represent Alabama consumers. If you have a valid FDCPA (Fair Debt Collection Practices Act) claim then we feel it is normally best to bring this in federal court, not as a counterclaim.
      (3) Can I object to evidence on grounds of hearsay? (ie. credit card agreements and affidavit of debt.) At trial you can depending on which court you have been sued in. Let me know where you have been sued and we can give you some more specific information.
      (4) Should I inform these debt collectors I am recording our phone conversation. I am aware that in the State of Alabama, as long as one party is aware…etc., but if they deny me permission to record, what should I do? You can record the calls as long as you tell them. Often they will say “We can record but you can’t” which is just ridiculous. They may not talk to you if you record. You don’t have to record — do take good notes of the conversation.

      Give us a call if you would like to chat about these issues — 205-879-2447 — and we’ll be glad to help you.

      Thanks!

      John Watts

  11. Tiffany says:

    Good afternoon Mr Watts,
    How do I find out what court I need to contact about a suit being filed against me by Midland for an old credit card debt
    ? They claim a sheriff or process server will be serving me a complaint but I have gotten nothing. The letter I received was from Ferry & Nicholas, Inc in Tuscaloosa, AL dated 12/18/14. Should I check with the courts in Tuscaloosa or somewhere in Millbrook where the letter was sent to? I live in Montgomery and I have no clue where to even start with this…

    • John Watts says:

      Tiffany,

      Ferry & Nicholas is a non lawyer firm that sends out advertisement letters offering to “represent” you as a mediator. I think it’s a terrible idea to hire these guys — you can read about this in an article I did on why you receive letters from Ferry & Nicholas.

      So to find out what is happening, here are some options:

      **If the Ferry & Nicholas letter tells you what court you were sued in (District court of Tuscaloosa or Jefferson, etc) then call the court. You call the “clerk of the court” and they can look up to see if you have been sued.

      **Wait till you are served.

      **Call my office at 205-879-2447 and ask for Carolyn. She can look up on the online court system to see if she can find a lawsuit by Midland against you.

      Midland files about a hundred lawsuits a week in Alabama and almost all are related to old credit card debt that Midland claims to own. Keep in mind there is a big difference in claiming something and proving it.

      Now that you know you have been sued, you need to consider your five options:

      1. Bankruptcy (rarely appropriate but occasionally it is)
      2. Fight the lawsuit on your own (we can give you some resources to help you)
      3. Settle the lawsuit on your own
      4. Hire a lawyer to fight the case for you
      5. Hire a lawyer to settle the case for you

      You can read a somewhat lengthy article and watch at 24 minute video on these 5 options when sued.

      After you do this, give us a call at 205-879-2447 and we’ll be glad to help you think through which option is best for you.

      Thanks for your comment and let us know how we can help you.

      John Watts

  12. Donald says:

    I’m 60yr.old male,im on disability ,Midland sued me for a Walmart credit card I had in 2013,$4,700,i can barely buy food,im scared shitless I will be kicked out of my apartment if these dam crooks take my SSD.what can I do?my court date is next month.Thank you.DW.

    • John Watts says:

      Donald,

      I’m assuming you live in Alabama. Your SSD won’t normally be taken even if Midland gets a judgment against you. My suggestion is to fight this at trial. Call us at 205-879-2447 and ask for Carolyn — she’ll set us up a call and we’ll be glad to help you understand some options when it comes to fighting this on your own.

      Talk to you soon.

      John Watts

  13. Natasha Davis says:

    Midland just had a sheriff come to my door. I don’t understand why they’re trying to garnish my checks. They say i owe four thousand some dollars and i don’t know to who. They took money out my checks in 2013 when i was working. I got laid off and then i got a letter saying there was a class action suit against them. So why are they trying again to garnish my checks if they being sued. And also the debt is from 2006…. And the garnishee is checkers drive thru… I dont even work at Checkers???! Help me understand this please.

    • John Watts says:

      Natasha,

      Give us a call at 205-879-2447 and ask for Carolyn — she’ll look up your case to see what’s happening.

      It could be a mistake or it could be that the garnishment wasn’t fully paid. Unfortunately, they often add lots of interest to the judgments and that can add up quickly.

      We’ll be glad to give you some thoughts though on your options — call 205-879-2447 and Carolyn will get you set up with some options.

      Thanks

      John Watts

  14. Tammy says:

    I have an unpaid credit card debt of over $20,000 that was related to my business, but was/is under my personal ss#. I closed the business but have not repaid the creditor. The last payment made was Dec2014. I received a letter 1st of January 2018 that original creditor (Citibank) had sold the debt to Calvary and have had a couple calls from Calvary but have not talked with them. Yesterday, I received notification from credit monitoring service that Account was placed inCollections by Calvary. When I checked my credit, the original Citibank debt had been taken off and the Calvary amount is now there and shows In collection. My question is this – what should I do? I still am not able to pay, I think the SOL has run out and I certainly do not want to be sued.

    Thanks for any guidance you can offer,
    Tammy

    • John Watts says:

      Tammy,

      Part of the analysis has to be what state are you in — because that will influence the statute of limitations question.

      Normally — but this is not iron clad — Cavalry does not sue in Alabama after 3 years. So if your last payment was December 2014, then you should be beyond the time to sue. But there are factors that go into this so you have to look at this very specifically.

      Bottom line — you need to speak with a consumer protection lawyer in your state. If you are outside of Alabama, find someone in your state.

      If you are in Alabama, give us a call at 205-879-2447. We can help you evaluate your risk now, evaluate if the debt is sold to another company what does that mean, what to do on the credit reporting, what NOT to do so you don’t get yourself sued, etc.

      Best wishes

      John Watts

  15. Amy says:

    I so appreciate all of the insight that you have posted regarding Midland Funding. They have filed a suit against me for old debt from a credit card company. Hearing is set for June 18. I’ve just completed a document — REQUEST FOR PRODUCTION.

    In the letter I’m requesting:

    1. Produce a copy of a signed application
    2. Produce a copy of executed contract in Midland Funding’s possession setting forth the terms I allegedly agreed to with the credit card in the beginning.
    3. Produce a copy of any modifications to those terms agreed up on by me
    4. Produce all statements from the beginning of time to present
    5. Produce detail regarding alleged charges by, amount, type and date
    6. Produce evidence of all payments received

    Do you have any additional advice that would be helpful when disputing a Midland Funding suit which is filed by the Moxley firm?

    • John Watts says:

      Amy,

      You are welcome — thanks for your comment!

      There are advantages and disadvantages to doing a document request.

      This is something better for us to discuss over the phone as I don’t necessarily want to lay out the downsides here where collectors can read it. 🙂

      Call my office at 205-879-2447 and ask for Carolyn. Tell her I mentioned that we can chat by phone about this — do give her the info on your case so she can look it up as it makes a difference what court you are in.

      If small claims then there is no discovery. No ability to send discovery — well, you can send it but Midland has no obligation to respond.

      If in district court — have to get the judge’s permission to send this.

      Now if you are in circuit court, then you can definitely do this unless the time has passed for discovery.

      Thanks and give us a call — I’ll be glad to walk you through this — 205-879-2447.

      John Watts

  16. Mary says:

    My 68 year old mother just received lawsuit filed by Midland Funding LLC. “Plaintiff claims defendant owes $692.53 because: complaint.” Complaint says Defendant defaulted on obligation to make periodic payments on the credit card account, account was assigned to plaintiff, who has the right to bring this action. Issuer provided periodic billing statements which reflected payment due and total bal due that were delivered to defendant and not returned undelivered to issuer. First claim: money had and received. 2nd-account stated. Followed by affidavit of “legal specialist of mcm”. How would you suggest proceeding? She isn’t employed but draws a $100 retirement check from my deceased father’s last employer. Thanks for any help!

    • John Watts says:

      Mary,

      Be glad to help you and your mom.

      First, remember she has 14 days to answer from date of being served since she was sued in small claims court (anything under $6,000 is small claims now in Alabama).

      Second, she does have five options which we discuss in this article.

      Third, the best way to figure out what to do is to call our office at 205-879-2447 and ask for Carolyn — she’ll look up the case and make sure everyone is on the same page of what is happening. Then go over options and she can set up a call with me if you like.

      Main thing is to NOT let the time period pass — answer or hire a lawyer to answer.

      Talk to you soon!

      John Watts

  17. Tania says:

    I received a notice from Alltran Financial, LP stating I owe for Washington Mutual Bank account awarded 5/6/2010. It was sent to my moms address which I haven’t lived at since 1993. I divorced in 2006 and my ex had opened a number of accounts in my name. I had judgements against me for them because we were married and he used my social. Now I have finally built my credit score up and receive this notice saying this company was hired to collect and now LVNV Funding LLC owns my account. They want $2067.94. I have no job and am physically unable to work. My children and I live off child support and the help of my parents. I am not sure whether to contact this company or what I should do. I welcome any advice.

    • John Watts says:

      Tania,

      I’m assuming you are in Alabama.

      Is there a judgment against you?

      Call my office at 205-879-2447 and ask to speak to Carolyn — she can look up any judgment in Alabama. And we would like to see the collection letter from LVNV.

      We sue them a lot as they have trouble keeping the law in my opinion.

      Look forward to talking with you — 205-879-2447 thanks!

      John Watts

  18. Charles says:

    Hi, I have a question on the SOL for an account that is listed as a line of credit account type on a credit report. The account is with Bank of America. The account was “open” in that you could continue to borrow from the account up to the line of credit. Is this type of account an open or closed account?

    • John Watts says:

      Charles,

      Great question — let me do my best to answer it.

      First, if you have a line of credit (whether house or otherwise) then this would be more of an open account rather than a closed account.

      Second, this means if you look at the statute of limitations for open account — it is three years in Alabama.

      Third, if you are sued you will be sued under a breach of contract theory. You would definitely have a contract with Bank of America and the statute of limitations for a contract is 6 years in Alabama.

      So for statute of limitations, it will likely be six years.

      Do keep in mind credit reports list accounts as open or closed. Simply means whether the account is active or has been charged off or shut down.

      Totally different than what we mean in the context of the statute of limitations — “open” means you can borrow and then pay down so like a credit card or line of credit.

      Hope that helps!

      John Watts
      205-879-2447 if you are in Alabama — welcome to give us a call.

  19. Mary says:

    Not sure if you can help me on this or not. My husband got an online loan through Elastic. He is on SSD and receives $1,300/month. Our payments are almost $600/month, leaving us with little food and bill money for the rest of the month. Is there a way to get the amount to reduced?

    It is auto-deducted from our bank account on the same day he gets his monthly SSD.

    We live in Calhoun County, AL

    Thank you,

    • John Watts says:

      Mary,

      You can always talk to the company about your situation to see what they can do for you.

      If they won’t help you, you can look at bankruptcy or what the consequences will be if you stop paying. Do you own a house they could take? They can’t garnish social security normally so they won’t have a lot of leverage.

      Bottom line is they should work with you to make this doable for both your husband and the company.

      Feel free to call us at 205-879-2447 and we can chat through some options.

      Best wishes

      John Watts

      • Grace says:

        So I haven’t been sued but I do live in Al and have a question with old debt. I have two (capt1 cards 2396/1273) 1 hhgregg -midland 1700; 2 portfolio (walmart 1500 and lowes 1700) the two capt 1 are just showing as charged off and my credit utilization over 120% just for those two and the others are showing as debt charged off and double dipping and listed as collections. This was all done during a terrible marriage that ended in nasty divorce. I am working on rebuilding my credit and trying to get a new home for my children. I want to see about getting these negative items removed either my settling lump sum or fighting to remove- which direction would be best to get charge offs and collections. These are showing early 2016. Please help

        • John Watts says:

          Grace,

          Give us a call at 205-879-2447 and ask for Randi. We’ll start with your credit reports and see what is on there and then give you some options.

          Sometimes it is best to wait.

          Sometimes we can dispute items.

          Other times we can settle.

          Finally, sometimes we can sue when there is false information on credit reports.

          Really depends on each situation.

          We’ll be glad to help you look through your options and help you any way we can.

          Thanks

          John Watts

          205-879-2447 — ask for my paralegal Randi who handles credit report issues.

  20. Wendy says:

    I received a call from Bennett and Associates out of Riverside, Ca. They said I would be served within 48 hours to appear in Lee County Superior Court. They said I had and Urban Salute Visa that was opened from 5/22/07 to 2/28/12 and I owed $3,054.95. They had my address, phone number and ss# I did not give it to them. I do not recall this debt and have NEVER had a credit card in that amount. Also, this has never shown up on my credit report. Can you advise me about this?

    • John Watts says:

      Wendy,

      You don’t appear in Alabama court unless there is a court hearing. First you have to be served.

      I doubt Bennett and Associates knows when you will be served.

      Anyway, here is the best way to find out if there really is a lawsuit against you. If there is not, then these guys lied and should be sued.

      Call the court in Lee County (or call Carolyn in my office and she can look up all lawsuits in Alabama against you — 205-879-2447) and see if a lawsuit is pending. Carolyn can pull a copy of the lawsuit for you and send to you.

      If there is a lawsuit and this is NOT your debt (ID theft, etc) then easy to fix it.

      But let’s start and see if these guys are lying or telling the truth about a lawsuit — easiest way is call Carolyn (205-879-2447) and she’ll look it up for you while you are on the phone with her.

      Thanks

      John Watts

Leave a Comment